Sweaty Palms?

Waiver

John Wolohan
Professor of Sports Law
Department of Sport Management
Syracuse University

INTRODUCTION
There is perhaps no greater issue in the sport, recreation and health club industries than the use and interpretation of waivers. Considering how important waivers are, and how much they are being used, it is amazing that there is still such a great deal of misunderstanding over their legal value and the protection they can provide. This article attempts to demystify waivers and provide readers with a basic understanding of how they work.

Perhaps, first, and foremost, it is important to note that a waiver is a contract entered into between the user of the recreation or health club services and the service provider. In the contract, the user agrees to relinquish his or her legal right to sue the service provider in the event that the user is injured as a result of the provider’s negligence. In exchange for giving up their legal right to sue the service provider, the service provider agrees to allow the individual to use the recreation and health club’s services and facilities. It is important to note that as a general rule the waiver will only protect the service provider from liability for ordinary negligence and will not protect the service provider or its employees from gross negligence or reckless misconduct.

Second, the legality of a waiver is determined by state, not federal law, and therefore its validity will vary depending upon the state. Therefore, just because a recreation or health club facility uses a waiver legally in one state that does not mean that it will be valid in another state. It should be noted that in at least 43 states, a well-written, properly administered waiver, voluntarily signed by an adult, can be used to protect the recreation or sport business from liability for ordinary negligence by the business or its employees. It should also be noted that in three states: Louisiana; Montana and Virginia all waivers will be void since the courts have found them to violate public policy.Read more

John Wolohan Professor of Sports Law Department of Sport Management Syracuse University

We have all heard the warnings that waivers are not worth the paper they are printed on, and while it is true that some courts do not like waivers and will void them if possible, in must be noted that in at least 45 states a well-written waiver, signed by an adult, is the most effective tool available to sport and recreation providers and their employees against a negligence lawsuit. With the myth of the effectiveness of waivers still around, it is therefore not surprising that some sport and recreation providers are concerned about the legal impact of online or electronic waivers. For example, if a sport and recreation program requires its’ participants to go online and sign a waiver before being allowed to participate in the event, will it carry the same legal weight as off-line or traditional paper waivers?
The purpose of this article is to try and debunk the myth that online or electronic waivers carry less legal weight than other types of waivers. Read more

Waivers and releases of liability have been proven to be an effective risk management tool
in avoiding liability, particularly for entities that are regularly engaged in the area of sport
and recreation. A recent decision of the British Columbia Court of Appeal in Loychuk v.
Cougar Mountain Adventures Ltd., 2012 BCCA 122 demonstrates just how powerful a tool
waivers can be and, when properly drafted, how resilient they can be to challenges of
unfairness and unconscionability.

The case involved two plaintiffs, Loychuck and Westgeest. They were injured when
Westgeest was allowed to be sent down a zipline by Cougar Mountain employees at a time
when Loychuck, who had immediately preceded her, was suspended on the line before
reaching the bottom. Although the guides employed by the operator were in communication
by walkie-talkie, the individual directing Westgeest was not advised that Loychuck had
become suspended in mid-course. Westgeest was allowed to proceed down the line and
came into collision with Loychuck at considerable speed and without any ability to stop
herself or slow her descent. The operator’s employees were clearly negligent and so the
only defence available to the operator was the waiver of liability that each of the plaintiffs
had signed prior to the commencement of the activity.Read more

The British Columbia Supreme Court recently revisited the issue of the validity of Waiver of Liability and Assumption of Risk Agreements as a complete defence even when there is clear negligence.

In Loychuk v. Westgeest v. Couger Mountain Adventures Ltd et al. (decided in early 2011), two women in separate groups participated in a Zipline package. On one section of the Zipline, one of the women got stuck halfway from the start point and the second woman collided into her a high rate of speed, causing injury to both. There was no question that the Zipline guides did not communicate and the second woman should have been held back until the first was brought down.

However, both had signed a waiver of liability/assumption of risk agreement. The defence argued that that should be the end of the matter as the waiver was all encompassing, including the exclusion of liability due to the negligence of the company’s employees.

The plaintiffs argued the following:

That the release was unenforceable because it was reasonable to know that the plaintiffs were not consenting to the terms at issue and the company failed to take steps to inform the plaintiffs of the terms; in other words there was a misrepresentation by omission;

That the release was unconscionable;

That the release was contrary to the Business Practices and Consumer Protection Act (British Columbia) by reason of deceptive and/or unconscionable acts by the company;

Liability issues are faced by everyone. It does seem that there are more lawsuits and more ways to be sued but some of the risks have not changed. For the Student Union Manager, there will always be students, some considered to be ‘children’ in the eyes of the law; there will always be those who want to take risks; and there will always be alcohol (and drugs).

The following is a primer on some of the basics to keep in mind when planning activities with the Student Union (SU) Board and running the Union.

Acknowledging the most feared four letter word in Campus Recreation is the first step in understanding it : R-I-S-K.

Risk…there, it’s out in the open. And now that it has been acknowledged, perhaps we can move beyond the knee-jerk reaction and discuss how risk is controlled, or in legal terms, mitigated. Because as scary as risk may be, nothing is more terrifying than finding out your plan to control that risk is inadequate or outdated.

This article will explore why risk is such an ominous topic for recreation professionals, what the current standard is for mitigating risk in campus recreation, and where the legal decisions are trending with regard to mitigating risk.